Reviewing the views
Did British Airways go wrong?
A lawyer's point of view
Shamsuddin Choudhury
British Airway's (BA) refusal to carry Sheikh Hasina to Dhaka, despite extant ticket and valid travel documents, and her consequential response to sue the airliner, has quite expectedly, generated general curiosity on the law that governs the carriage of passengers by airliners. Purpose of the present venture is to familiarise inquisitive readers with the relevant laws.
The governing law: It is the law of contract that primarily governs the relationship between a passenger and the carrier, because when a carrier sells a ticket to a potential passenger, a contractual relationship gets animated whereby both the carrier and the passenger bind themselves to adhere to the terms of the contract. Other areas of law, such as the Warsaw Convention and the Protocols that followed, the Law of Tort ,Carrier's Liability legislations of various countries, certain provisions of the private international law, otherwise known as the conflicts of law and the law of agency also play their respective roles.
Contractual terms: Every contract, irrespective of its nature, extent and purpose, contains certain terms, which are known as Conditions, and Warranties, depending on the relative importance of the term concerned. When a term of a contract is breached, whether the term is a warranty or a condition, the innocent party earns a right to be repaired for the damage he suffers as a consequence of the other party's breachful action or omission. The nature of relief, however, depends on whether the term is a Condition or a Warranty. Quantum of damage depends on the extent of the damage suffered and, can indeed, surge far beyond the amount payable under the head of general damages, if existence of special circumstances exacerbates the loss or the damage, warranting payment of special damages.
Carrier's obligation in a contract of carriage: It goes without saying that in a contract for the carriage of passengers, the carrier's core obligation is to carry the passenger to it's proposed destination. Generally speaking, a carrier would be liable to the passenger in the event of its failure or declination to perform its part of the obligation to carry the passenger as agreed.
That said, however, it should not escape one's thought that a situation may emerge which would legally exonerate departure from the above stated obligation. Justification on this count may stem from what, in legal jargon, are called 'Exclusion Clauses', which may be express or implied.
Circumstances beyond the Carrier's control, legally known as 'Force Majeure' situation, may also extinguish a carrier from liability.
Under the doctrine of 'Freedom of Contract', a carrier has a wide leverage to stipulate variety of exclusion clauses, subject, however, to the rule against exorbitant terms. Carriers can, hence, include and enforce wide spectrum of exclusion clauses in the contract of carriage expressly or by relying on such implied exclusion clauses, as the courts would accord recognition to.
Some exclusion clauses, limiting the extent of liability, emanate from the Warsaw Convention and the followant Protocols. An international or a bilateral Convention or Treaty does not ipso facto become part of a country's law or part of a contract. They may, nevertheless, acquire judicial recognition as part of implied terms if generally followed by a trade for a reasonable length of time. The provisions of the Warsaw Convention, however, are almost invariably incorporated in the form of express terms in their contracts of carriage by almost all airliners.
Carrier's liability legislations are relatively recent entrant into the horizon . Aimed to obstruct entry of undesirable passengers, primarily on immigration consideration, some developed countries enforce the provisions of these legislations by imposing heavy penalties on the carrier. Almost all airliners have, therefore, responded by explicitly stipulating corresponding terms in their contract of carriage of passengers.
Exclusion clause relied on by BA in Sheikh Hasina's case: In an immediate response, the British Airways wrote to a close relative of Sheikh Hasina stating, 'This action was necessary as on 18th April 2007 we received a written notification from the CIVIL AVIATION (my emphasis) Authority of Bangladesh that Sheikh Hasina had been barred from entering Bangladesh. Our right to refuse carriage is contained within our General Conditions of Carriage for passengers and baggage. Section 7, Paragraph 16, states that we may decide to refuse to carry you if the IMMIGRATION (my emphasis) authority for the country you are travelling to has told us (either verbally or in writing) that it has decided not to allow you to enter that country, even if you have, valid travel documents.'
It follows that Article 16 of Section 7, was the only exclusion clause the BA purported to resort to. The question that immediately surfaces is whether the BA could legally have recourse to the said Section.
Reproduced verbatim, Section 7, reads, 'We may decide to refuse to carry you or your baggage if one or more of the following has happened or we reasonably believe may happen.'
Paragraph 16 of Section 7, then stipulates,' If the IMMIGRATION (my own emphasis) authority for the country you are travelling to, or for a country in which you have a stop over, has told us that (either orally or in writing) that it has decided not to allow you to enter that country, even if you have, or appear to have, valid travel documents.'
So, what Article 16 of Section7, in its plain language, requires is that the BA has to be told by the IMMIGRATION authority of the country of destination that the passenger concerned would not be allowed in. In other words the said Section designates and contemplates the IMMIGRATION authority only, none else.
It does not, therefore, require much efforts to be swayed to the irrefutable synthesis that the criteria of Section 7, Paragraph 16, can only be met if the direction stemmed from the IMMIGRATION authority of the country in question. That obviously, was not the case when Sheikh Hasina was refused boarding. By their own admission, the BA received notification, not from the IMMIGRATION authority, the authority specifically envisaged by the said Section, but by a wholly different functionary of the state, namely the CIVIL AVIATION Authority.
Ordinary natural meaning' rule: Since an important right of a person has been infringed, the language should be strictly construed, that is to say that IMMIGRATION authority should be deemed to mean and connote the IMMIGRATION authority only. Cannons of interpretation, as a general rule, leans in favour of the rights of the people.
Besides, since there is no ambiguity or dichotomy in the rather lucid languages used in Section7, Paragraph 16, they deserve to be interpreted in accordance with the 'Ordinary Natural Meaning' principle of the rules of interpretation, in which event the purported justification advanced by the BA is bound to fall apart.
Unenforcibility of the Civil Aviation message: It is a matter of common knowledge that the supremacy of law is still the order of the day in Bangladesh , with the only exception of a few constitutional provisions that have been put in abeyance, for the time being , by the proclamation of emergency.
It is also well known that any decision taken by the government beyond statutory or constitutional sanction, can be set aside by the Hon'ble High Court under it's WRIT (Judicial Review) jurisdiction.
The British Airways cannot, as a regular voyager to Bangladesh, be reckoned to be oblivious of the conspicuous fact that, like in the UK, the government in Bangladesh can not do anything bereft of constitutional or statutory sanction, and that no statutory or constitutional provision exists in the Republic to empower the government to thwart the entry of a citizen and, hence, the message conveyed through the civil aviation letter was not enforceable in Bangladesh.
Section 7 paragraph 16, not applicable to a passenger travelling to her own country: Even an unaided reading of Section 7, Article 16, should swing most lawyers to the extricable irresistible and invincible conclusion that it, assumes and presupposes a situation where the passenger concerned proposes to travel to a country where she is subject to immigration control, i.e., a country other than the country of her own nationality. That is so because no country in the world can impose immigration control on its own citizens or refuse them entry, either under the municipal law or under the customary international law. In other words provisions of the said Section can not be meant to have envisaged a situation where a passenger is destined to travel to her own country, where she has an inalienable right of entry.
Did section 7, paragraph 16, form part of the bargain?: That a purported term, not brought to the notice of the other side to the bargain at the time the same was concluded or beforehand, cannot be regarded as incorporated in the contract, remains a well settled principle throughout the Common Law jurisdictions. If it is accepted that for the said reason Sec 7, Article 16, could not be treated to have formed part of the bargain, then the BA's Sec 7 Article 16-based claim would dwindle at the very inception.
Question of forum: Question of jurisdiction is governed by the principles of Private International Law, otherwise known as the Conflict of Laws. Since the breach took place in the UK, we should not encounter any hurdle in choosing the UK as the proper forum.
Before parting, an interesting piece of information for the readers. Way back to mid nineties, I appeared for the British Airways in a case in Bangladesh in which the British Airways eventually arrived at an out of court settlement where a passenger was refused boarding on the mistaken belief that his US Green Card was a forgery.
The writer is Barrister-at-Law & a former Judge, Supreme Court of Bangladesh, and Chair, UK Awami League Legal Action Committee.
